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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on 'Is there a distinction between dishonesty and gross dishonesty?' and discusses two new judgments on this topic. We also discuss three other new judgments: The first case investigates if moonlighting is ever acceptable. The second case considers technical issues on the framing of a dispute and the binding nature of pleadings. The third case deals with what is included in the calculation of the National Minimum Wage.


Moonlighting and prior disclosure to the employer

In Vilakazi v Commission for Conciliation, Mediation and Arbitration and Others (JR164/20) [2023] ZALCJHB 319 (3 November 2023) the issues were whether moonlighting (working an extra job) can ever be acceptable and whether the employer has the sole prerogative to decide whether to allow this to take place. The case also dealt with when costs should be ordered if the litigation is unfounded.

The employee was employed by Wits Business School and also took up full time employment with Kantar South Africa (Pty) Ltd. Both employers had employment conditions dealing with moonlighting. Wits came to know of her employment with Kantar about a month after she took up that employment, when someone anonymously placed a copy of her Kantar employment contract in her department head's pigeonhole.

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Jurisdiction and pleadings: some important technical issues

In Railway Safety Regulator v Kekana (JA126/2021) [2023] ZALAC 28 (18 October 2023) the court had to decide if it matters how a dispute is framed at the time of conciliation and whether the 'real' dispute can later be adjudicated. Also the court had to decide if parties are bound by their pleadings and by the pre-trial minute they sign. Two further questions were whether the case pleaded or the defence can be expanded or changed later, and whether a court may order reinstatement which was not sought in the pleadings.

The employee, Mr Kekana, was employed as Executive Manager: Occurrence Investigations at the Railway Safety Regulator. While on his annual leave there were two train accidents and there were allegations that he did not respond to the accidents correctly. After his suspension on 27 March 2018, Mr Kekana was issued with several charges, including gross dereliction of his duties and a breach of investigation procedures.

Following this dismissal, Mr Kekana referred an unfair dismissal dispute to the CCMA which was to be referred to arbitration. Instead, Mr Kekana instituted a claim in the Labour Court alleging that his dismissal by the employer was an automatically unfair dismissal as contemplated in section 187(1)(h) of the LRA as it was in breach of section 3 of the Protected Disclosures Act (PDA). The different ways in which the dispute was framed raised the issue of whether there was a need to conciliate the dispute as it was finally framed.

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Is a contractual bonus part of the minimum wage?

In Quantum Foods (Pty) Ltd v Commissioner H Jacobs N.O. and Others (JA85/2022) [2023] ZALAC 27 (18 October 2023) the issue was whether an employer which is contractually bound to pay a bonus, is entitled to factor that payment and provident fund contributions, into the calculation of its employees' hourly rate for the purpose of the National Minimum Wage Act.

In an attempt to bring its employees' wages in line with the National Minimum Wage Act, Quantum Foods restructured its payslips to include a contractual bonus, as well as the contributions it paid to a provident fund on behalf of its employees. The bonus could, at an employee's election, either be paid annually or in equal monthly payments Once those amounts were factored in, the wages met the minimum threshold prescribed by the Act.

GWUSA (the employees' trade union) challenged Quantum Foods' entitlement to factor in the abovementioned payments and contended that those payments were excluded for the purposes of calculating minimum wages in terms of section 5 of the Act. The Union declared a dispute on behalf of its members and the matter was referred to the CCMA for arbitration.

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ARTICLE : Is there a distinction between dishonesty and gross dishonesty? By Prof Alan Rycroft

The basic understanding about the contract of employment is that there exists a duty on employees to act with good faith toward the employer and to serve honestly. The Code of Good Practice: Dismissal says that generally, it is not appropriate to dismiss an employee for a first offence, except if there is gross dishonesty and it is of such gravity that it makes a continued employment relationship intolerable.

Many would argue that dishonesty is dishonesty, and theft is theft. Many would say that it is a slippery slope to distinguish between dishonesty that doesn't cause damage and dishonesty that does, between a theft of an item of small value and one of large value. And differing court decisions have not helped. In two recent cases the seriousness of the dishonesty was the main issue.

In South African Revenue Services (SARS) v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others (JR 2243/21) [2023] ZALCJHB 222; [2023] 10 BLLR 1090 (LC); (2023) 44 ILJ 2311 (LC) (21 July 2023) the employee represented that he was sick and was spotted participating in a protest march called by the EFF against Clicks on the two days that he had called in sick. Supreme Poultry (Pty) Ltd v Radiboke and others (C536/2020) [2023] ZALCCT 56 (11 October 2023) involved an employee claiming for overtime he had not worked.

In his article, Prof Alan Rycroft draws the learnings from these 2 cases and discusses whether there is any real distinction between dishonesty and gross dishonesty.

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Bruce Robertson
January 2024
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